Prime Minister Narendra Modi declared in his 2021 Independence Day speech that his government intends to raise the legal age of marriage for women in India. While the general public has applauded this choice, will we be able to understand its practicality after we consider other significant factors? Was this decision aimed toward progress, or is this step a case of moral posturing? Let’s have a look at the various arguments that stand in favor of and against the proposed bill.
The Union Cabinet in December 2021 cleared a proposal to raise the marriageable age for women across India from 18 to 21 years. The bill now lies before the Standing Committee for further evaluation, a few steps away from becoming a law.
The bill amends the Prohibition of Child Marriage Act, 2006 to raise the minimum age of marriage for girls from 18 to 21 years, quashing any other customs or practices. The bill also increases the minimum age for application of annulment of marriage, i.e., before attaining majority (before 20 years of age for girls). The bill now allows women to apply for annulment of marriage till 23 years of age, i.e., for up to five years.
A woman is considered an adult upon attaining the age of 18 years. This implies that all laws meant for adult citizens of the country would apply to her. It would include her being allowed to vote, sign a contract, attain a driver’s license or be tried as an adult if she’s involved in a criminal case. However, according to the proposed bill, a woman is still not old enough to exercise her choice of getting married. This is also the current status of males in our country. Attaining the age of majority at 18, while not being permitted to marry until the age of 21, may have implications for the rights and obligations of people aged 18 to 21.
According to the government, raising the marriageable age will help achieve a variety of goals, including further declines in MMR and IMR, improvements in nutrition levels, sex ratio at birth, female labor force participation, and gender equality. But data on MMR and IMR shows that these indicators have already been improving in the country. There is no credible data to suggest that child marriage is the major reason for the high MMR and IMR. There may be other factors like health, nutrition, and lack of medical facilities that contribute to it. While the government intends to improve education among women, this move may eventually lead to a rise in the number of underage marriages.
Under the new law, underage marriages would be considered null, and women would be allowed to approach the court for annulment of marriage up to the age of 23, which would help young girls who are forced into marriage and want to come out of it. However, for many poor families, marrying off their daughters is seen as a solution to deal with poverty, escalating dowry demands, and the fear of sexual assaults against their daughters. Raising the legal age of marriage would mean that a much larger section of society, mainly the poor, would face punitive measures.
If child marriages are considered null and void in the eyes of the law, it would mean the spouse would have no right to maintenance, no marital rights, and no right to inheritance, and the man would face no legal consequences if he married again. Moreover, marriages considered null and void in the eyes of the law would still have social validity. A young girl who is married just becomes a spouse without any legal protection. Raising the age of marriage would result in many more such young girls who would have no legal protection or even recognition under the law. Steps must instead be taken to tackle the ongoing issues faced by young girls.
Critics of the proposed bill argue that this increase in the minimum age for marriage would be counterproductive. They say that this would deprive young girls of their rights as adults and would be misused by parents as a tool to keep them under their control.
According to the NFHS (2019-21), 23% of women aged 20 to 24 married before the age of 18. However, only 785 cases were registered in 2020. This means that there has been limited success in curbing marriage below the age of 18 years. The current PCMA law treats underage marriage as valid but voidable. It gives social workers flexibility in negotiating with the families involved. Using laws at the village level may have severe repercussions (e.g., Bhanvari Devi was gang-raped for stopping child marriage).
The supreme court has said that the right to marry is a part of the right to life under article 21 of the Indian constitution. It further stated that this right could not be taken away except through a law which is substantively and procedurally fair. In a case in 2018, the supreme court held that the consensual choice of two adults to be together is recognized under articles 19 and 21 of the constitution. It also held that consensual sexual activities between two consenting adults are fundamental rights under articles 14, 15, 19 and 21 of the Indian constitution. If the bill were passed, it would be legal for two consenting adults to have sexual relationships but illegal to marry between the ages of 18 and 21. Again, this is also the current status of males in India.
Several national and international committees recommend making 18 years the legal age of marriage for both boys and girls. The current law is based on the archaic assumption that girls mature earlier than boys. However, it must be noted that due to the prevalence of hypergamy, bringing down the age of marriage for boys would result in people desiring a bride of age 14-16 years for a man of age 18. Hence, the government must focus on strengthening the current laws rather than introducing changes without any secure foundation.
The proposed law essentially puts off the existing problems, even while effort must be made to address domestic abuse, early pregnancies, etc., and new laws must be passed to address issues like marital rape and domestic abuse against males.
It is crucial for the state to envision a certain future for women in the country, but the proposed legislation would impose a drastic shift without addressing the circumstances that necessitate such legislation in the first place. Adulthood is not divisible. The law seems to be limiting a woman’s rights under the pretext of women’s empowerment. There is no hard-core evidence to prove that raising the marriageable age would benefit society in any way. In fact, it might end up guiding us away from the core issues.
Bushra Faridi is a student pursuing Geography from Jamia Millia Islamia.
Edited by: Diptarka Chatterjee